Select Committee on Foreign Affairs Minutes of Evidence


Examination of Witnesses (Questions 20-39)

RT HON PETER HAIN MP AND MR KIM DARROCH CMG

TUESDAY 1 APRIL 2003

  20. But you are confident that, at the end of the day, what is produced will be in our national interest?
  (Mr Hain) Yes, I am; for the very simple reason that if it is so fundamentally against our national interest then we will not agree to it, it is as simple as that.

Mr Olner

  21. Secretary of State, it is very difficult for the 16 to come to a common view on what the constitution should be; has there been any discussion with those states which are seeking accession to the European Union, have they had an input into the draft constitution?
  (Mr Hain) As you will know, the new member countries, not just the ten that are coming in next year to add to our 15, making 25, but the two others, Bulgaria and Romania, that are in the accession process already and will come in in some future years, and Turkey, the additional country, making 28 countries in there, I think that our discussions with a broad range of countries, both existing Member States and new Members States, put us right at the centre of gravity of the Convention. And I have been very struck about how that is. There are one or two issues where we are in a smaller minority, but we are not alone, and there are other issues where we are in the great majority, but, most of all, we are right in the middle, in the centre of gravity, which is where I think a leading European power, such as Britain is, should be.

  22. I am not going to put words in your mouth, so that is Old Europe versus New Europe?
  (Mr Hain) Well it is a little more complicated than that. A lot of the new member countries share our concerns about the nation states being the foundation of the European Union, not least because they themselves have enjoyed perhaps only 12, 13 years of freedom from being controlled from Moscow. On the other hand, a lot of the existing Member States—Sweden and Denmark, and actually France—in the institutional architecture are very similar to us, as is Spain, as is Italy, in terms of the nation states being the foundation, rather than everything being communitised and there is some kind of federal superstate being erected, which perhaps is closer to the Benelux position, and maybe Germany's. So I think it is not just New and Old Europe, whatever that means, I take it to mean—no, I will not try to define it.

Mr Maples

  23. Secretary of State, I think that the big issue with this constitution, for a lot of us, is, is it some clear codifying of the existing treaties into a more sensible and comprehensive reform, or is it actually a constitution for a United States of Europe and creating a single European state? And, for me, there are four pretty crucial tests of that, and I wonder if I can ask you the Government's views on each of them. The first, and I think perhaps the most difficult, is the incorporation of the Charter of Fundamental Rights. It seems to me, it is not like the United States' Bill of Rights, so a series of legal rights, but actually it is a list of mainly political aspirations; if it were included in the Treaty, as is proposed in the current draft Articles, presumably it would become justiciable in the European Court. I know that the Government resisted this for quite a time, but now seems to be arguing that by the wording of parallel clauses one can perhaps constrain it. I wonder if you could take us through what is the Government's position on including the Charter of Fundamental Rights?
  (Mr Hain) If we go back to Nice, in 1999, we were quite content for the Charter as a political declaration of admirable principles. The issue that concerned us is precisely the one that you have focused on, quite understandably, would it be justiciable or not; and we took the view that, as it had been drafted then, if simply incorporated into the treaty, as was proposed by its most fervent advocates, it would have been justiciable, and therefore it could have overturned our domestic law, and we were not having that. Where we have got to now, in the Convention, mainly as a result of really sterling work done by Baroness Scotland, my alternate in the Convention, who has done a really, really excellent job, we have managed to secure agreement, with the support of the Justice and Home Affairs Commissioner, Antonio Vitorino, of strong horizontal clauses in the Charter that prevent it, as it were, coming down into our domestic law, to stop competences being extended, and therefore prevent it being justiciable. That was where we were in a consensus position in the Working Group and in the Convention plenary, which endorsed that Working Group. The way it has come out so far in the draft constitution, the way the Article was drafted, it fudges that rather, in a way that is not acceptable to us. And so what we have to have, even to be prepared to consider whether we would support the Charter being incorporated in some fashion, is that it stands not embedded in the first part of the treaty but perhaps as a protocol, with a read-across from the main treaty which makes it absolutely clear that the horizontal Articles stop precisely that justiciable impact that we would not accept. So, just to summarise, we are in a position, we are seeking to negotiate a change from where it is in the draft, and, frankly, it is such an important principle for us that we will not accept it being incorporated in some way unless that copper-bottom guarantee is given.

  24. So it is a non-negotiable point for the Government that the Charter of Fundamental Rights should not become directly justiciable in the European Court of Justice, as a result of this treaty?
  (Mr Hain) The point is this, that what you have to do is stop, for example, our employment laws being overturned, or somebody who feels they are not getting hospital treatment quickly enough taking their local trust to court under this provision, and so on and so forth, precisely the things that concern you and equally concern us. So if we can get the commentary properly drafted alongside the Charter, and if the horizontal Articles are as we want them to be, and if we can position it in the whole structure in a way that we want, then we are willing to look at it, but unless all of those ducks come into a row, no, we are not.

  25. Can I take you through, just quickly, my other points. The Common Foreign and Security Defence Policies: it seems to me crucial, if this is to be not a constitution for a United States of Europe, that those policies should remain (a) inter-governmental and (b) subject to a veto. What is the position of the Government on those two questions?
  (Mr Hain) Yes, they should remain inter-governmental, and subject to unanimity, save for those areas which are already, in terms of implementing decisions, and so forth, subject to Qualified Majority Voting.

  26. What would be the Government's view about collapsing the pillar structure so that the Commission had a role in foreign and defence and security policy?
  (Mr Hain) Obviously, the Commission has a role already, in that the functions carried out by Chris Patten, for example, on association agreements and aid and development, and the other foreign policy issues around it, so it has a role already; but, no, as far as we are concerned, CFSP is a matter for Governments and will remain a matter for Governments.

  27. I think my next two questions are capable of very quick answers. One is that it seems to me that in the treaty, again to reinforce the position that this is not creating a single European state, there should be a presumption in favour of subsidiarity, which was not in the Charter to good effect. I wonder if the Government would agree with that?
  (Mr Hain) Yes, and, returning to the question I was asked earlier by Fabian, we have had a very important advance already, which is pretty well secured, subject to how finally it turns out, in the final draft, that national parliaments, for the first time ever, will be given rights, through an early warning mechanism, to declare whether they think that a new proposal for legislation, or some other initiative, infringes the principle of subsidiarity. So that is an important advance.

  28. Yes, but it requires an awful lot of national governments to agree, to trigger the procedure, as it is outlined at the moment, and my point was, if there were a presumption in favour of subsidiarity, you would not get what you have got in, whether it is Maastricht or Amsterdam, I forget, that remains a provision of that subsidiarity, but it is never honoured because it does not have any teeth in it. If the Court had to interpret the Union's powers in the light of a presumption of subsidiarity, it seems to me that that would make that question much easier to deal with?
  (Mr Hain) I can see where you are coming from, but there are lots of things that we want Europe to do, we want Europe to improve our security against terrorism, or human trafficking, or international crime; we have got to be very careful that, as it were, we do not modify the situation that stops Europe acting. What this procedure is designed to do is put national parliaments in pole position, right before the Commission can proceed, to be able to have a right to say `no', this should be done at a national state level and not a European level, and I think that is very important. And an equally important consequence of it will be, in my view, that the Commission, and the Council and the Parliament, because those two institutions often are responsible for making subsidiarity and proportionality questions worse, that for the Commission, initially, it will be a deterrent factor, they will be thinking to themselves, "National parliaments are going to take a view on this before we can get to first base," and therefore they will be extra vigilant about subsidiarity and proportionality.

  29. One of the differences between the constitutions of federal states, like the United States, and the constitutions of international organisations, like, say, the WTO or Council of Europe, is an explicit right for a Member State to leave; and I wonder if you would favour that? I think that, if there were an explicit, as opposed to an implied, right in the treaty to leave, and I know that, theoretically, we can repeal the European Communities Act, but if there were an explicit right for Member States to leave then I think that would allay the fears of a great many people who fear that this is a constitution for a single European state. I wonder what is the Government's position on that?
  (Mr Hain) We are quite relaxed, quite happy, about an exit clause, as it were, and for it to be defined as such. But can I say just one other thing. There is not a cat in hell's chance of a federal superstate being agreed by this Convention; it is not just a question of we will not agree it, Spain will not agree it, France will not agree it, Italy will not agree it, Sweden will not agree it, Poland will not agree it, and that is just for starters. So, whatever the ambitions of some European Parliamentarians, and maybe some members of the Commission, and maybe some of the smaller existing Member States, there is no chance of that happening at all.

  30. We always hear that, and if the draft Articles which are coming out of the Convention are put into the constitution then I think what you will have is much closer to what I fear than what you say is going to be acceptable?
  (Mr Hain) No, I do not agree, and I think when you see the final version you will be much reassured.

  Mr Maples: I hope so.

Sir John Stanley

  31. Secretary of State, could I take you back to what the Government said in its White Paper prior to the previous Inter-Governmental Conference, the White Paper that was published in February 2000, entitled "The British Approach to the European Union Inter-Governmental Conference 2000[1]", on the issue of unanimity. The Government said this: "Clearly, some areas, such as treaty change and accession, will have to remain subject to unanimous agreement, and the Government has also made clear that we shall insist on retaining unanimity for other key areas of national interest, such as treaty change, taxation, border controls, social security, defence and own resources, the EU's revenue-raising mechanism." Can you tell the Committee whether that remains the Government's position?

  (Mr Hain) Yes.

Andrew Mackinlay

  32. I realise that one of the great strengths of the European Union is that it is a ratchet which almost guarantees enduring democracy; but one can foresee a situation, with an enlarged community, a decade down the road, in one of the countries admitted, such domestic strife that there could be, for instance, a coup d'état. What mechanism is there to get rid of a country, expel a country, suspend a country, where it does not comply with the Copenhagen criteria?
  (Mr Hain) I might call on the help of Kim, in this, but to accede, let alone become a permanent member of the European Union, you have to maintain, you have to abide by the Copenhagen criteria.

  33. Well, that is democracy, yes, I understand that.
  (Mr Hain) What are the areas in which you can suspend them; perhaps you can help me on that, Kim.
  (Mr Darroch) I cannot quote to you the precise text. There are provisions already which say that if a Government departs from the basic principles, European values, that all in the European Union should share, then there is some sort of process which requires at least consultation amongst the other Governments about the next step. And you will recall there was a decision in relation to Austria, two or three years back, when the Freedom Party became a part of the Austrian Government, under which such measures were taken against Austria. So there are procedures there; they are being looked at as part of the Convention process, so they may get adapted in the treaty text that is put forward to the IGC. It is not clear how the others will mark it.

  34. No; I am very grateful, and I do not mean this disrespectfully, but, in a sense, you are struggling, because clearly this has not been looked at, and I put it to you it has to be looked at with some vigour. The Austrian example is a bogus one. As reprehensible as I might have thought the Government elected in Austria, it was elected by parliamentary procedure.
  (Mr Hain) And your point is, a coup, or something like that.

  35. Yes. And that, 10 years down the road, I put it to you, it is not inconceivable; there is one applicant country which has a relatively recent record of military rule and has a very strong military, admittedly it is not in the first tranche of accession. But we have the difficult issue of Cyprus, and also there could be other countries where things have gone extraordinarily badly, and it does seem to me you need to build in a mechanism, not where there is "consultation" but where there is a final sanction of suspension in pure terms, not a formulation or expulsion. Because the other political institutions around the world, because we are not building a United States of America, but let me use that in contrast, demonstrably the federal government can move in, if you had a state which was not complying with democratic norms it could not endure; but precisely we are not vesting that power in the Union.
  (Mr Darroch) I may now have found the relevant bit in the existing Treaty, which is Article 7. Do you want me to read it out?

  36. I am genuinely interested in this, you know, it is probably prophetic words.
  (Mr Darroch) It is quite a lot, but I will paraphrase it.

  37. Paraphrase it if you like.
  (Mr Darroch) If a proposal by a third of the Member States or by the Commission and with the assent of the European Parliament, the Council, Heads of Government level, the European Council, decides that there exists a serious and persistent breach by a Member State of the basic principles of the European Union, then the Council, acting by a Qualified Majority, may decide to suspend certain of the rights deriving from the Treaty in relation to that Member State, including the voting rights, and in doing so the Council should take into account the possible consequences of such a suspension of rights on the rights and obligations of the citizens of that state. So there is a provision in there already, that is being looked at.

  38. Yes, but it is not, is it? I listened very carefully to what you said. They are sanctions, it is a withdrawal or suspension of rights, not putting them outside the club?
  (Mr Hain) I think that Andrew is raising a really important point, and I will give him an assurance, Chairman, that this is something that we are not simply going to skate over, that is an important principle, as Europe enlarges, which I think is your point, this is an issue that must be to the forefront of not just our minds but the mechanisms by which the EU operates.

  Chairman: I think Mr Mackinlay's point is clear, there are more fragile countries likely to be within an enlarged Europe, there should be a provision for suspension, and we want to know where it is. Perhaps you could write to us with not only that but with what discussions there have been within the Convention?

Andrew Mackinlay

  39. I am content with what the Minister has said.
  (Mr Hain) I will be happy to do so[2]. You will appreciate that this is being done bit by bit and we have not yet really paid a lot of attention to that.

  Andrew Mackinlay: Chairman, I know we are concerned primarily with these Working Groups 7 and 8, but is it competent for us just to ask about the parliamentary oversight; what is our remit this afternoon?

  Chairman: Yes, we can deal with it.


1   IGC: Reform for Enlargement, CM 4595 Back

2   Ev 10. Back


 
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